Doe v. Donahue
| Decision Date | 10 June 2005 |
| Docket Number | No. 49A02-0408-CV-674.,49A02-0408-CV-674. |
| Parties | Jane DOE et al., Appellants-Plaintiffs, v. J. David DONAHUE, in his official capacity as Commissioner of the Indiana Department of Correction, Appellee-Defendant. |
| Court | Indiana Supreme Court |
Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, for Appellants.
Steve Carter, Attorney General of Indiana, Frances H. Barrow, Indianapolis, for Appellee.
Appellants-Plaintiffs Jane Doe and the class comprising all persons confined in institutions maintained by the Indiana Department of Correction, or who will be so confined in the future (collectively, the "Prisoners"), appeal the trial court's grant of summary judgment in favor of Appellee-Defendant J. David Donahue, in his official capacity as the Commissioner of the Indiana Department of Correction (the "Department"). We affirm.1
The Prisoners raise four issues on appeal, which we consolidate and restate as:
I. Whether the trial court erroneously granted summary judgment to the Department because Executive Directive 02-01 ("ED 02-01") violates Indiana Code Section 11-11-3-9; and
II. Whether the trial court erroneously granted summary judgment to the Department because ED 02-01 violates the First, Eighth, and Fourteenth Amendments to the United States Constitution.
The present controversy concerns the legality of ED 02-01, a directive enacted by the Department that restricts offenders who have been convicted or adjudicated of certain sexual offenses from receiving visitors under the age of eighteen. The directive and its predecessor, Executive Directive 01-06, were implemented to protect children from abuse or misconduct during visitation sessions at the Department's prison facilities. To better understand the policy behind ED 02-01, we examine the reality of visitations at the facilities.
There are twenty-five adult facilities in Indiana ranging in security levels from one to four, with the highest level being four. All facilities have visitation areas. Level two through four facilities, which are the only facilities that house sexual offenders, have "semi-similar" visitation areas. Appellants' App. at 86. In particular, the visitation areas are open areas with twenty-five to thirty tables that can accommodate approximately one hundred people. At the beginning and end of a visit, a prisoner may embrace his or her visitor. However, when the prisoners and visitors are seated, everyone's hands must be on top of the table. There is typically one correctional officer to supervise the visitation room, but more may be added on weekends when visitation volume increases. Thus, according to Stephan McCauley, operational director for the Department's southern region, the visitation room is a "wild and crazy place." Id. at 88. In recounting his experience as a supervisor of a visitation room, he explained:
There's a lot of activity. Obviously, a lot of our offenders are in their early 20s, and they have young kids, and they come to visit. So you have a lot of kids in the room, and they're running around. I mean, you know, it's hard to keep children down. So it's just noisy, hectic, a lot of movement.
The vending machines are very popular because families take money into the visiting room. So I mean everyone's always moving through the visiting room, et cetera. I mean you're trying to keep your eye, especially on the weekend, on a hundred people, and you're constantly being distracted. It's easy to miss things. There's no doubt about it. One person has a very difficult time doing that.
Unlike the general population, prisoners who are on disciplinary or administrative segregation may only have non-contact visitation, either through closed-circuit television, a physical partition, or separation from the general visiting area. Such non-contact visitation is currently available at all level two through four facilities.
On March 8, 2001, the former Commissioner of the Department issued Executive Directive 01-06 ("ED 01-06"), which provided that "[o]ffenders who have a current or past adjudication/conviction of a sex offense involving a minor2 SHALL NOT be permitted to receive visits from minors." Appellants' App. at 56 (emphasis in original). As previously mentioned, ED 01-06 was enacted to protect "children from the possibility of being victimized while visiting offenders." Id. Indeed, ED 01-06 was the Department's acknowledgement of research, which showed that "victims of sex offenses know the perpetrators between 80% and 90% of the time ... [and] that persons who prey on children often psychologically prepare the children for some time prior to engaging in any sexual activity." Id. In enacting ED 01-06, the Department recognized that sexual offenders have a high risk of reoffending, that their outward behaviors demonstrate responsible and trustworthy actions to others, that they use deception to gain trust, and that they maintain secrecy by psychologically grooming3 the victim. In addition, the Department was cognizant of the problems that confront a prison facility's visiting room supervision staff, namely, that the supervisory staff: (1) may not recognize the psychological manipulation employed by sexual offenders; (2) are outnumbered and cannot not be everywhere at all times; and (3) may be psychologically prepared by the offender to view the offender as trustworthy, responsible, and unthreatening. Further, and perhaps most importantly, the Department was aware of incidents where children had been sexually molested in visiting rooms that were being supervised by prison staff. Id. at 62.
On February 11, 2002, the Department implemented a revised policy, ED 02-01, i.e., the policy at issue here, which outlines the procedures to be followed when offenders, who have been convicted or adjudicated of a sexual offense involving a minor, request to have a particular minor visit them. Pursuant to ED 02-01, when an offender is received at a departmental intake unit, his or her records will be reviewed to determine whether there has been either a conviction as an adult or an adjudication as a juvenile for a sexual offense involving a minor. "If there is such a conviction/adjudication, the offender's records [will] be marked with a `Y' (for Yes) in the `VMR' (Visitor-Minor Restriction) field in the Offender Information System (OIS)." Id. at 58. Subsequently, upon receipt of the offender at the appropriate housing facility, the Department's staff will determine whether the offender is a VMR Offender. If so, and if the offender has requested that minors be allowed to visit him or her, the staff will review the offender's records and decide whether he or she may be eligible for visitation with minors. Specifically, to be eligible for such visitation, the offender must meet the following criteria:
A) The offender has not had any designated disciplinary code violations for 12 months.
B) The intended visitor is an immediate family member — i.e., the offender's child, including adopted or stepchild, sibling, or grandchild — who was not the victim of the offense.
C) The offender has not been adjudicated/convicted of any other sexual offense and there is no documentation that the prisoner has had multiple victims.
D) The offender has not had any other visitation restrictions for sexually-related activities within the past twelve months.
E) There are no known court orders restricting or prohibiting the offender from visiting with the intended visitor.
F) The circumstances surrounding the adjudication/conviction indicate that the minor, though legally incapable of consenting, was not compelled by force or threat.4
If an offender meets the above criteria,5 the Department's staff will request that a case management review be completed, assuming that one has not previously been prepared, by a private contractor who manages the Department's sex offender management and monitoring ("SOMM") program. The offender may appeal from an adverse determination by the SOMM staff or from the facility's decision to deny his or her request for visitation with minors.
Presently, there are approximately 20,000 adults confined within the Department's facilities. As of June 17, 2003, there were 2,795 prisoners with VMR restrictions. Of those 2,795 prisoners, 138 had applied for visitation and nine had been allowed visitation with minors as of June 5, 2003.6
On September 14, 2001, the original plaintiff, prisoner Jane Doe, filed her class action complaint.7 On November 26, 2001, and by stipulation of the parties, the trial court certified the case as a class action pursuant to Indiana Trial Rule 23(B)(2). The class is defined as:
All prisoners currently, or who will in the future be, confined in institutions maintained by the Indiana Department of Correction or otherwise subject to the executive directive which prohibits prisoners from visiting with minor children if they have a current or past adjudication/conviction of a sex offense involving a minor.
Appellants' App. at 22. On December 1, 2003, the Prisoners filed their summary judgment motion. In response, on April 29, 2004, the Department filed a cross-motion for summary judgment, asserting that the Prisoners do not have a right to unrestricted visitation and that the policy was rational and furthers a legitimate penological goal. After conducting a hearing on the cross motions for summary judgment, the trial court entered findings of fact, conclusions of law, and summary judgment in favor of the Department, determining that ED 02-01 did not violate Indiana law or the First, Eighth, or Fourteenth Amendments. The Prisoners now appeal.
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